Joyner v. Whiting
| Decision Date | 10 April 1973 |
| Docket Number | No. 72-1630.,72-1630. |
| Citation | 477 F.2d 456 |
| Parties | Johnnie Edward JOYNER, Individually and as Editor-in-Chief of the Campus Echo; Harvey Lee White, Individually and as President of the Student Government Association; and both of them in behalf of all persons similarly situated, Appellants, v. Albert N. WHITING, President of North Carolina Central University, individually and in his official capacity, Appellee. |
| Court | U.S. Court of Appeals — Fourth Circuit |
COPYRIGHT MATERIAL OMITTED
Professor Daniel H. Pollitt, Chapel Hill, N. C. (Norman B. Smith, Smith, Patterson, Follin & Curtis, Greensboro, N. C., James V. Rowan, and Paul, Keenan & Rowan, Durham, N. C., on brief), for appellants.
Burley B. Mitchell, Jr., Asst. Atty. Gen. (Robert Morgan, Atty. Gen. of North Carolina, on brief), for appellee.
John R. Jordan, Jr., Raleigh, N. C. (Jordan, Morris & Hoke, Raleigh, N. C., on brief), amicus curiae, Board of Governors of University of North Carolina; Professor William W. Van Alstyne, Durham, N. C., amicus curiae.
Before HAYNSWORTH, Chief Judge, and BUTZNER and FIELD, Circuit Judges.
Johnnie Edward Joyner, editor of the Campus Echo, the official student newspaper of North Carolina Central University, and Harvey Lee White, president of the university's student government association, appeal from an order of the district court, which (a) denied their application for declaratory and injunctive relief to secure reinstatement of financial support for the Echo, and (b) permanently enjoined Albert N. Whiting, president of the university, and his successors in office, from granting future financial support to any campus newspaper. Joyner v. Whiting, 341 F. Supp. 1244 (M.D.N.C.1972). Joyner and White assert that the decree violates the First and Fourteenth Amendments. President Whiting urges affirmance on the ground that the paper's segregationist editorial policy and racially discriminatory practices violate the Fourteenth Amendment and the Civil Rights Act of 1964. We reverse because the president's irrevocable withdrawal of financial support from the Echo and the court's decree reinforcing this action abridge the freedom of the press in violation of the First Amendment.
The first issue of the Echo under Joyner's editorship published a banner headline on the front page that asked, "Is NCCU Still a Black School," and an article entitled, "Look and You Shall See," which stated in part:
In addition, the paper contained a survey of student opinion which reflected strong opposition to the admission of white students.
President Whiting responded with the following letter to Joyner:
Despite a meeting to resolve the differences, no agreement could be reached. The president's counsel then advised him that because North Carolina Central University is a state institution he could not constitutionally refuse to financially support the newspaper if his refusal was contingent on the paper's meeting journalistic standards or other subjective criteria. Accordingly, acting on advice of counsel, the president irrevocably terminated the paper's financial support and refunded to each student the pro rata share of the activities fee previously allocated to the Echo. The president took no action to bar Joyner, or any other student, from publishing and circulating a privately funded newspaper on the campus. Indeed, several issues of the Echo were published without the university's financial support, but it became apparent that the paper could not survive unless it received its usual subsidy from the student activities fees.
Fortunately, we travel through well charted waters to determine whether the permanent denial of financial support to the newspaper because of its editorial policy abridged the freedom of the press. The First Amendment is fully applicable to the states, Gitlow v. New York, 268 U.S. 652, 666, 45 S.Ct. 625, 69 L.Ed. 1138 (1925); Stromberg v. California, 283 U.S. 359, 368, 51 S.Ct. 532, 75 L.Ed. 1117 (1931), and precedent establishes "that state colleges and universities are not enclaves immune from its sweep." A college, acting "as the instrumentality of the State, may not restrict speech . . . simply because it finds the views expressed by any group to be abhorrent." Healy v. James, 408 U.S. 169, 180, 187, 92 S.Ct. 2338, 2345, 2349, 33 L.Ed.2d 266 (1972); see Wright, The Constitution on the Campus, 22 Vand.L.Rev. 1027, 1037 (1969). It may well be that a college need not establish a campus newspaper, or, if a paper has been established, the college may permanently discontinue publication for reasons wholly unrelated to the First Amendment. But if a college has a student newspaper, its publication cannot be suppressed because college officials dislike its editorial comment. Panarella v. Birenbaum, 37 A.D.2d 987, 327 N.Y.S.2d 755, 757 (1971); cf. Danskin v. San Diego Unified School Dist., 28 Cal.2d 536, 171 P.2d 885, 892 (1946).2 This rule is but a simple extension of the precept that freedom of expression may not be infringed by denying a privilege. Sherbert v. Verner, 374 U.S. 398, 404, 83 S. Ct. 1790, 10 L.Ed.2d 965 (1963).
The principles reaffirmed in Healy have been extensively applied to strike down every form of censorship of student publications at state-supported institutions. Censorship of constitutionally protected expression cannot be imposed by suspending the editors,3 suppressing circulation,4 requiring imprimatur of controversial articles,5 excising repugnant material,6 withdrawing financial support,7 or asserting any other form of censorial oversight based on the institution's power of the purse.8
But the freedom of the press enjoyed by students is not absolute or unfettered. Students, like all other citizens, are forbidden advocacy which "is directed to inciting or producing imminent lawless action and is likely to incite or produce such action." See Brandenburg v. Ohio, 395 U.S. 444, 447, 89 S.Ct. 1827, 1829, 23 L.Ed.2d 430 (1969). Tinker v. Des Moines Ind. Community School Dist., 393 U.S. 503, 513, 89 S.Ct. 733, 740, 21 L.Ed.2d 731 (1969), expressly limits the free and unrestricted expression of opinion in schools to instances where it does not "materially and substantially interfere with the requirements of appropriate discipline in the operation of the school." We previously considered these limitations in Quarterman v. Byrd, 453 F.2d 54, 58 (4th Cir.1971):
"Specifically, school authorities may by appropriate regulation, exercise prior restraint upon publications distributed on school premises during school hours in those special circumstances where they can `reasonably "forecast substantial disruption of or material interference with school activities" \' on account of the distribution of such printed material."
In his brief President Whiting acknowledges that there does not appear to have been any danger of physical violence or disruption at the university because of the publication of the Echo. The record, of course, does disclose that the paper's message of racial devisiveness and antagonism was distasteful to the president, and it may well have offended other members of the university community. However, no white faculty members or students complained that the paper's editorial policy incited anybody at the university to harass or interfere with them. The case, therefore, does not present a situation that Brandenburg, Tinker, and Quarterman recognize as justifying restriction of free expression.
As a foundation for its decree, the district court fashioned a unique exception to the well established body of law dealing with censorship of college newspapers. Describing the Echo as a state agency, the court upheld the termination of its funding by the university on the ground that the Fourteenth Amendment and Civil Rights Act of 1964 bar a state agency from spending state funds to discourage racial integration of the university "by a program of harassment, discourtesy, and indicia of unwelcome."
Censorship of the paper cannot be sustained on the court's theory. The record contains no proof that the editorial policy of the paper incited harassment, violence, or interference with white students and faculty. At the most, the...
To continue reading
Request your trial
-
Bailey v. Loggins
...supra, 416 U.S. 396, 415, 94 S.Ct. 1800, 1812, 40 L.Ed.2d 224; Guajardo v. Estelle (5th Cir.1978) 580 F.2d 748, 761; Joyner v. Whiting (1973) 477 F.2d 456, 460; Pliscou v. Holtville Unified School Dist. (S.D.Cal.1976) 411 F.Supp. 842, 847; Antonelli v. Hammond, supra, 308 F.Supp. 1329; Dick......
-
Gay Students Organization of University of New Hampshire v. Bonner, Nos. 74--1075
...340 U.S. 268, 71 S.Ct. 325, 328, 95 L.Ed. 267, 280 (1951); Bonner-Lyons v. School Comm., 480 F.2d 442 (1st Cir. 1973); Joyner v. Whiting, 477 F.2d 456 (4th Cir. 1973); Wright, The Constitution on the Campus, at 1050. Another interest asserted by appellants is that in preventing illegal acti......
-
Galda v. Bloustein, Civ. A. No. 79-2811.
...ideas.13See Community-Service Broadcasting of Mid-America, Inc. v. FCC, 593 F.2d 1102, 1110 (D.C.Cir.1978) (en banc); Joyner v. Whiting, 477 F.2d 456, 461 (4th Cir. 1973). This distinction is well illustrated by the Court's decision in Wooley, supra. The Court indicated that the state had a......
-
Donaggio v. Arlington County, Va.
...Comm'n, 688 F.2d 1033, 1041 (5th Cir.1982), cert. denied, 460 U.S. 1023, 103 S.Ct. 1274, 75 L.Ed.2d 495 (1983); Joyner v. Whiting, 477 F.2d 456, 461 (4th Cir.1973); Arrington v. Taylor, 380 F.Supp. 1348, 1365 (M.D.N.C.1974). Moreover, there are sensible policy reasons for not adopting a ban......
-
Trampling the "marketplace of ideas": the case against extending Hazelwood to college campuses.
...v. Daily Nebraskan, 829 F.2d 662 (8th Cir. 1987); Mississippi Gay Alliance v. Goudelock, 536 F.2d 1073 (5th Cir. 1976); Joyner v. Whiting, 477 F.2d 456 (4th Cir. 1973); and Bazaar v. Fortune, 476 F.2d 570, modified, 489 F.2d 255 (5th Cir. 1973). Similar cases decided before Healy and Papish......